DAOD 1001-1, Formal Requests for Access to Departmental Information

Identification

Date of Issue: 1999-10-12

Application: This is an order that applies to members of the Canadian Forces (CF) and a directive that applies to employees of the Department of National Defence (DND).

Supersession: NDHQ Instruction DG Exec Sec 3/91, Implementation - Access to Information Act

Approval Authority: This DAOD is issued under the authority of the Assistant Deputy Minister (Finance and Corporate Services) (ADM (Fin CS)).

Enquiries: Director Access to Information and Privacy (DAIP)


Definitions

Information Commissioner (Commissaire à l'information)
The Information Commissioner is an official appointed under the Access to Information Act (AIA) who has the powers of an ombudsman.
Level 1 Advisors (conseillers principaux)
Level 1 Advisors are identified in the Position Equivalency Table in Support of the Delegation Matrix, Delegation of Authorities for Financial Administration for DND and the CF (A-FN-100-002/AG-006).

Guidelines

General Principles

There is a right of access which applies to all records under the control of the department unless the records qualify for an exemption or are specifically excluded from the application of the Access to Information Act (AIA).

Records that are excluded from the application of the AIA are described in sections 68 and 69 of the AIA. The records containing information which may or must be exempted from access are described in sections 13 to 24 and 26 of the AIA. Section 25 stipulates that only information which qualifies specifically for an exemption or exclusion under one of the provisions of the AIA may be refused. All other information found in a record subject to a request under the AIA must be provided to the requester.

In keeping with the principles of openness and transparency to which DND and the CF subscribe, records released under the AIA are made available to the public ten (10) working days after the date they are released to the original applicant(s). Summaries of most of the requests responded to are posted to the DND website.

Role of the Information Commissioner

The Information Commissioner has the authority to review all material except Cabinet Confidences to determine validity of exemptions claimed.

The Commissioner has the power to investigate a complaint or to initiate an investigation.

When conducting an investigation, the Commissioner may:

Conditions applying to the applicant

An applicant must:

An applicant may register a complaint regarding the:

Types of Records

The following departmental records, regardless of format, are subject to the AIA:

Note - Only departmental records are subject to the AIA. Records pertaining to a Minister's constituency or political business are not considered departmental files.

For more information on transitory records, see the Records Management Directive (ADM Fin/CS). For more information on record retention or disposal, see A-AD-D11-001/AG-001, Records Scheduling and Disposal.

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Time Limits and Extensions

Overview

Applicants are entitled to quick processing of their requests. Responding to these requests within the thirty (30) calendar day time limit provided by the AIA is essential to ensure the success of the department's policy of transparency and to promote its relationship with the Canadian public. Extensions to the statutory thirty (30) calendar-day time limit may be claimed in certain circumstances.

The thirty (30) calendar days are counted from the day after the receipt of a complete request in the appropriate office(s) named in the access publication, as provided for in subsection 27(5) of the Interpretation Act.

Criteria

The statutory thirty (30) calendar-day time limit may be extended by NDHQ/DAIP if:

Note - These consultations are carried out by DAIP based on recommendations by the Office of Primary Interest (OPI).

Exempted Material

Overview

There are exemptions to the rule of disclosure and, as a result, some records may be disclosed in whole or in part. The necessary exemptions are limited and specific. The following chart outlines the major exemptions listed in the AIA, which are pertinent to DND. Any further questions should be directed to DAIP.

REFERENCES EXEMPTIONS GUIDELINES FOR DISCLOSURE

Section 13

Information obtained in confidence from:

  • Government of a Foreign State;
  • International Organization of States;
  • Provincial Government; and
  • Municipal/Regional Governments

Disclosure shall be refused, but the record may be disclosed if the organization from which the information was obtained:

  • consents to the disclosure; or
  • makes the information public.

Section 14

Federal-provincial affairs

Disclosure may be refused if the record requested contains information the disclosure of which could reasonably be expected to be injurious to the conduct by the Government of Canada, of federal-provincial affairs, including:

  • Federal-provincial consultations or deliberations; and
  • strategy or tactics adopted or to be adopted by the Government of Canada relating to conduct of Federal-Provincial Affairs.

Section 15

International affairs defence

Definitions

"defence of Canada or any state allied or associated with Canada" includes the efforts of Canada and of foreign states towards the detection, prevention or suppression of activities of any foreign state directed toward actual or potential attack or other acts of aggression against Canada or any state allied or associated with Canada.

"Subversive or hostile activities" means:

  • espionage against Canada or any state allied or associated with Canada;
  • sabotage;
  • activities directed toward the commission of terrorist acts, including high-jacking, in or against Canada or foreign states;
  • activities directed toward accomplishing government change within Canada or foreign states by the use of or encouragement of the use of force, violence or any criminal means;
  • activities directed toward gathering information used for intelligence purposes that relates to Canada or any state allied or associated with Canada; and
  • activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada.

Disclosure may be refused if the record requested contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities, including such information as:

  • military tactics, strategy, exercises or operations in preparation for hostilities or in connection with detection, prevention or suppression of subversive or hostile activities;
  • quantity, characteristics, capabilities or deployment of weapons or other defence equipment or anything being designed, developed, produced or considered for use as weapons or defence equipment;
  • characteristics, capabilities, performance, potential, deployment, functions or role of any defence establishment, any military force, unit or personnel or any organization or person responsible for the detection, prevention or suppression of subversive or hostile activities;
  • intelligence relating to:
    • the defence of Canada or any state allied or associated with Canada; or
    • the detection, prevention or suppression of sub-versive or hostile activities.
  • intelligence respecting foreign states, international organizations of states or citizens of foreign states used by the Government of Canada in the process of deliberation and consultation or in the conduct of international affairs;
  • methods of, and scientific or technical equipment for, collecting, assessing or handling information and information on sources of such information;
  • positions adopted or to be adopted by the Government of Canada, governments of foreign states or international organizations of states for the purposes of future international negotiations;
  • diplomatic correspondence exchanged with foreign states or international organizations of states or official correspondence exchanged with Canada's diplomatic missions or posts abroad; and
  • communications or cryptographic systems of Canada or foreign states used:
    • for the conduct of international affairs;
    • for the defence of Canada or any state allied or associated with Canada; or
    • in relation to the detection, prevention or suppression of subversive or hostile activities.

Subsection
16(1)

Law enforcement and investigations

Definition

"investigation" means an investigation that :

  • pertains to the administration or enforcement of an Act of Parliament;
  • is authorized by or pursuant to an Act of Parliament; or
  • is within a class of investigations specified in the regulations.

Disclosure may be refused if the record requested contains :

  • information less than 20 years old obtained or prepared by any government institution or part of a government institution that is an investigative body specified in the regulations in the course of investigations pertaining to :
    • the detection, prevention or suppression of crime;
    • the enforcement of any law of Canada or a province; or
    • activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act.
  • investigative techniques or plans for specific lawful investigations;
  • information the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including information :
    • about the existence or nature of a particular investigation;
    • that would reveal the identity of a confidential source of information;
    • that was obtained or prepared in the course of an investigation; or
  • information the disclosure of which could reasonablv be expected to be injurious to the security of penal institutions.

Subsection
16(2)

Security

Disclosure may be refused if the record requested contains information that could reasonably be expected to be useful for the commission of an offence including :

  • criminal methods and techniques;
  • technical information relating to weapons or potential weapons; and
  • vulnerability of particular buildings or other structures or systems, including computer or communications systems, or methods employed to protect such buildings, structures or systems.

Subsection
16(3)

Policing Services for Municipalities

Disclosure shall be refused if the record requested contains information that was obtained or collected by the Royal Canadian Mounted Police while performing policing services for a province or municipality where the Government of Canada has agreed on request to protect such information.

Section 17

Safety of Individuals

Disclosure may be refused if the record requested contains information the disclosure of which could reasonably be expected to threaten the safety of individuals.

Section 18

Economic Interests of Canada

Disclosure may be refused if the record requested contains:

  • trade secrets or financial, commercial, scientific or technical information that belongs to the Government of Canada or a government institution and has substantial value or is reasonably likely to have substantial value;
  • information the disclosure of which could reasonably be expected to prejudice the competitive position of a government institution;
  • scientific or technical information obtained through research by an officer or employee of a government institution, the disclosure of which could reasonably be expected to deprive the officer or employee of priority of publication; or
  • information, the disclosure of which could reasonably be expected to be materially injurious to the financial interests of the Government of Canada or its ability to manage the economy of Canada or which could reasonably be expected to result in undue benefit to any person, including:
    • currency, coinage or legal tender of Canada;
    • contemplated change in the rate of bank interest or in government borrowing;
    • contemplated change in tariff rates, duties or any other revenue source;
    • contemplated change in the conditions of operation of financial institutions;
    • contemplated sale or purchase of securities or of foreign or Canadian currency; or
    • contemplated sale or acquisition of land or property.

Subsection
19(1)

Personal Information

Note - OPI's are responsible for obtaining confirmation from the DAIP that the record does in fact contain personal information before the use of this exemption may be recommended.

Disclosure shall be refused if the record requested contains personal information as defined in Section 3 of the Privacy Act.

Disclosure may be made of records containing personal information if:

  • the person to whom it relates consents to the disclosure;
  • the information is publicly available; or
  • the information is in accordance with section 8 of the Privacy Act.

Subsection
20(1)

Third Party Information

Definition

"Third Party" means any person, group of persons or organization other than the person that made the request or a government institution,

Note - Where an OPI has reason to believe the record may contain third party information, the third party must be given an opportunity to give reasons why access should be denied. See Section 28 (consult the DAIP staff officer on this point).

Disclosure shall be refused if the record requested contains:

  • trade secrets of a third party;
  • financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential matter by the third party;
  • information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of a third party; or
  • information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.

Any record that contains information described in subsection 20(1) of the AIA may be disclosed with the consent of the third party to whom the information relates.

Subsection
20(2)

Product or Environmental Testing

The head of a government institution shall not, pursuant to subsection 20(1), refuse to disclose a part of a record if that part contains the results of product or environmental testing carried out by or on behalf of a government institution unless the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee.

Subsection
21(1)

Advice

Note - The exemptions in Section 21 of the AIA do not apply in respect of:

  • an account of, or a statement of the reasons for, a decision made in the exercise of a discretionary power or in the exercise of an adjudicative function affecting the rights of a person; or
  • a report prepared by a consultant or adviser who was not, at the time the report was prepared, an officer or employee of a government institution.

Government institutions are required to undertake a two-step process when invoking this exemption. Institutions must:

  • determine if the information requested qualifies for one of the classes of advice described in the exemption; and
  • if it does so, then determine whether or not disclosure of the information will result in injury or harm to the particular internal processes to which it relates.

Determination of injury or harm within the advice exemption should be judged on the basis of the impact the disclosure will have on the institution's ability to carry on similar internal decision-making processes in the future. Would disclosure make advice or recommendations less candid and comprehensive; consultations or deliberations less frank; destroy the ability of the government to develop and maintain strategies and tactics for present or future negotiations; or undermine the institution's ability to undertake personnel or administrative planning? Such determinations can only be based on the specific content of the advice, recommendations, account, position or plan that has been requested' the procedures involved in the decision-making process, and the sensitivity of the information requested. Institutions should take into account the effect disclosure will have on all steps in a decision-making process and not just the immediate interests involved with the information itself.

Disclosure may be refused if the record requested contains information described hereunder and the record came into existence less than 20 years prior to the request:

Paragraph
21(1)(a)

Advice and Recommendation:

"advice or recommendations developed by or for a government institution or a Minister of the Crown"

Paragraph 21(1)(a) provides that a government institution may refuse to disclose any record that contains advice or recommendations developed by or for a government institution or a Minister of the Crown.

This discretionary exemption encompasses as a class all types of advice and recommendations tendered within government institutions at all levels.

The term 'recommendations' refers to formal recommendations about courses of action to be followed which are usually specific in nature and are proposed mainly in connection with a particular decision being taken while, on the other hand, the term 'advice' refers to less formal suggestions about particular approaches to take or courses of action to follow. The exemption applies to advice and recommendations developed by officials at all levels within a government institution and by Ministers of the Crown. It also applies to similar information created for a Minister by his or her staff.

Much advice and many recommendations are of such a nature that release of this type of information can cause great damage to the ongoing internal processes within government for obtaining advice and recommendations.

Paragraph
21(1)(b)

Consultation and Deliberations

"an account of consultations or deliberations involving officials or employees of a government institution, a Minister of the Crown or the staff of a Minister of the Crown"

Paragraph 21(1)(b) provides that a government institution may refuse to disclose any record that contains an account of consultations or deliberations involving officials or employees of a government institution, a Minister of the Crown or the staff of a Minister of the Crown.

This discretionary exemption is intended to protect as a class accounts of consultations or deliberations involving officials, ministers and ministerial staff. Its primary purpose is to allow the frank exchange of views among these persons. Examples of records containing information falling into this category would be minutes of meetings and other memoranda and letters containing information relating to such consultations or deliberations.

Paragraph
21(1)(c)

Negotiations

"positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto"

 

Paragraph 21(1)(c) provides that a government institution may refuse to disclose any record that contains positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto.

This discretionary exemption protects as a class the strategies and tactics employed or contemplated by government institutions for the purpose of negotiations. Such information can be protected from disclosure even after the particular negotiations have been completed.

'Positions and plans' refer to information which may be used in the course of negotiations. 'Considerations' are somewhat broader in nature, covering information relating to the factors involved in developing a particular negotiating position or plan. Examples of the type of information which could be covered by this exemption are the mandate and fall-back positions developed by government negotiators for the purposes of bargaining in relation to labour, financial and commercial contracts. However, the exemption covers only those negotiations outside the federal government and does not apply to such activities when carried on among government institutions.

Paragraph
21(1)(d)

Personnel and Administration Plan

"plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation"

Paragraph 21(1)(d) provides that a government institution may refuse to disclose any record that contains plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation.

This part of the advice exemption protects as a class plans relating to the internal management of government institutions, including such documents as plans relating to the re-location or reorganization of government institutions. The provision is temporary for plans which are implemented. Once a plan is put into operation, the information relating to it can no longer be protected under this exemption. It should be noted, however, that although the final plan must be released, the options which were considered before deciding on the plan need not be disclosed. Plans which are never implemented can be protected for that twenty year period provided for in this subsection if injury or harm to the efficiency of the operations of the institution would result from disclosure.

Section 22

Testing procedures, tests and audits.

Disclosure may be refused if the record requested contains information relating to testing or auditing procedures or techniques or details of specific tests to be given or audits to be conducted if disclosure would prejudice the use or results of particular tests or audits.

Section 23

Solicitor-client privilege

Disclosure may be refused if the record requested contains information that is subject to solicitor-client privilege.

Section 24

Statutory prohibitions against disclosure

The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any other statute.

Section 25

Severability

Notwithstanding any other provision of the AIA, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under the AIA by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains any such information or material.

Section 26

Information to be published

Disclosure of any record requested may be refused if it is believed on reasonable grounds that the material in the record will be published by a department, government agency or a Minister of the Crown within 90 days after the request is made or within such further period of time as necessary days after the request is made or within such further period of time as necessary for printing or translating the material for printing.

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Recommendations for Disclosure of Records

Level 1 Advisors are accountable for assessing the consequences of disclosing a record within their respective areas of responsibility and recommending to DAIP whether the requested record should be released or disclosure refused on the basis of an exemption/exclusion contained in the AIA.

Responsibilities

The following table identifies the responsibilities for implementing the policy.

The... has the responsibility to...

DAIP

  • verify the requestor's right of access;
  • ensure the request can be understood by an experienced member or employee;
  • determine the appropriate OPI; and
  • provide advice regarding the AIA, if requested.

OPI

  • assess the time required to respond to relevant parts of the request and advise DAIP of any need for extensions to the statutory thirty (30) calendar day time limit;
  • locate records, regardless of form (i.e., handwritten notes, email or electronic records must all be identified);
  • ensure records are complete;
  • determine sensitivity of information;
  • seek advice from DAIP, if further explanation of exclusions and exemptions contained in the AIA is required;
  • recommend severances;
  • sign-off at appropriate level;
  • identify requests which may be sensitive for the department or the Minister;
  • notify senior management of potentially sensitive information releases so that briefing notes, Media Response Lines or other required products can be produced; and
  • send completed request to DAIP.

Processing a Formal Request

The following table describes how to respond to a formal request for access to departmental records.

Step Action

1

Request for Access to Information, in writing, received in DAIP.

2

DAIP verifies completeness and clarity of request.
If …
request is unclear or incomplete
Then …
clarify request by phone or mail

3

DAIP identifies the appropriate OPI(s).

4

An extension of the time limit is requested, if required.

5

OPI produces all relevant records and/or fee estimate.

6

OPI recommends exemptions/exclusions.

7

DAIP reviews proposals to ensure consistency with the AIA.
If …
there is a difference of opinion
Then …
DAIP consults with OPI to resolve it.

Note - This is determined on a case-by-case basis.

8

Records are released to applicant with all exempted material severed.

9

Records released to the applicant are normally made available to the public by DAIP after ten working days after the date of mailing/receipt by the applicant.

Complaints

Overview

The AIA provides that persons who have requested access to a record may register a complaint with the Information Commissioner.

Grounds for Complaint

The following are grounds for complaint:

References

Source References

Related References